“EQUAL JUSTICE UNDER LAW,” says the engraving above the front entrance to the United States Supreme Court. Famed architect Cass Gilbert designed that entrance almost 100 years ago. And the phrase dates back even further. While it undoubtedly reflects the goal of the justice system today, the idea of equal justice—and, perhaps more importantly, access to it—remains unachieved.
In the criminal justice arena, access-to-justice problems show themselves in a variety of different ways. It shows up with your right to counsel. With resources, you can hire the best lawyers who can hire the best experts who can spend as much time as needed on any given case. With resources, you can post cash bail. And, with resources, the court costs, fees and fines imposed during sentencing won’t define your future for years to come. And that’s just the basics on the criminal side of things.
But access-to-justice problems aren’t limited to criminal law alone. According to Legal Services Corporation’s most recent Justice Gap Report, 86% of the civil legal problems reported by low-income Americans receive inadequate or no legal help per year. And this is especially problematic because 71% of low-income households experience at least one civil legal problem per year.
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The Sixth Amendment guarantees that individuals accused of a crime “shall” maintain the following rights:
Preserving all of these rights is often an uphill battle. But none face more obstacles than the fifth: the right to an attorney. The right to counsel faces obstacles both inside and outside of the courtroom.
Inside, federal and state courts around the country have watered down the right to counsel. They do so with caselaw affording trial attorneys broad discretion with “strategic” decisions no matter how poor they may seem. They have also required that defendants prove that their attorneys’ failures changed the result of the prosecution, an often insurmountable standard even in the face of some of the most egregious constitutional violations
Outside, the preservation of the Sixth Amendment’s right-to-counsel guarantee faces a shrinking availability of the necessary resources to adequately defend those charged with crimes.
As Justice Sandra Day O’Connor wrote in Strickland v. Washington, 466 U.S. 668 (1984), “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” “Because of the vital importance counsel’s assistance,” Justice O’Connor wrote, “this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained.”
One way prosecutors violate an individual’s constitutional right to counsel is through governmental interference. But a more common and simpler example is when counsel fails to provide adequate legal assistance. According to Strickland, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”
Courts nationwide have put many obstacles in the way of the right to the effective assistance of counsel.
A client alleging ineffective assistance of counsel must prove objectively unreasonable performance and prejudice
In Strickland, the Supreme Court held that, “[w]hen a convicted defendant complaints of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Objectively reasonable performance requires satisfaction of a variety of duties, including one of loyalty, one of avoiding conflicts of interest, one to consult with the client, one to zealously advocate on the client’s behalf, one to bear the necessary skill and knowledge to protect the client’s interests and liberties, and more.
In addition, a defendant claiming ineffective assistance must also show that the error impacted the outcome of the case. Stated differently, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”
These requirements make sense on the surface. They protect the individual’s right to objectively reasonable performance by counsel but also protect the justice system’s resources. Courts have eroded both parts of the test over time.
The burden on clients claiming ineffective assistance continues getting harder and harder to overcome
Courts undermine the requirement that counsel’s performance be objectively reasonable by affording more and more deference to trial attorneys. In some circumstances, courts protect the attorney’s shortcomings by calling them trial strategy. Was the defendant’s constitutional right to present a defense violated when counsel failed to call alibi witnesses during trial? Maybe. But courts might consider trial counsel’s “strategy” of simply questioning the prosecution’s witnesses to be good enough.
The requirement that defendant demonstrate prejudice has also made the uphill battle even steeper. Did the prosecution and court violate the defendant’s right to confront the witnesses against him in an egregious way? Sure. But, at least according to some courts, that makes no difference if he or she was likely guilty anyway.
Courts across the country issue decisions like this every day. But decisions like these don’t make it in the mainstream media. And we can easily overlook them with the “well he was guilty anyway” logic. But our justice system must be better than that.
According to the Department of Justice, appointed attorneys represent more than 80% of state-court defendants and two-thirds of federal-court criminal defendants. This means that the vast majority of people charged with a crime rely on publicly funded lawyers like public defenders and court-appointed attorneys.
The U.S. Criminal Justice System Relies Heavily on Publicly Funded Lawyers Who Are Overworked and Underpaid
Despite the significant reliance on publicly funded lawyers, however, more and more attorneys are making it known how vastly underfunded they actually are.
In 2017, a Missouri public defender made headlines after being vocal about how overworked and underfunded his office was. His office’s caseload had increased from 74,000 cases in 2016 to 82,000 in 2017, but the funding remained the same. This meant that the attorneys in his offices were handling between 80 and 100 cases per week.
The New York Times published a mind-boggling story in 2017 about an overworked public defender in Louisiana, too. That attorney had 194 cases assigned to him in April 2017, a workload he said was appropriate for five lawyers. Even worse, his numbers looked good compared to his colleagues. Two dozen lawyers in his office had more. One had 413 current cases.
And, as hard as it is to believe, these are actually giving the current system too much credit.
In Florida in 2009, court-appointed attorneys averaged more than 500 felony and 2,225 misdemeanor cases annually. The Department of Justice recommends those numbers be around 150 felonies and 400 misdemeanors. Similar numbers showed up in Washington, where court-appointed defense attorneys had 1,000-case misdemeanor workloads. This meant they spent less than an hour on each case.
As if overworking and underfunding court-appointed attorneys wasn’t enough, the problem is made even worse inside the courtroom. Because these lawyers manage hundreds, sometimes thousands, of cases at a time, courts often push hearings back to accommodate their hectic schedules. This means folks stay in prison longer, sometimes for no reason other than their attorneys’ overwhelming workload.
Yet Court-Appointed and Publicly Funded Defense Lawyers See Their Budgets Going Down, Not Up
Despite this alarming trend and the growing criticism of it, however, lawmakers continue pushing forward in the opposite direction. Every year states across the country cut the budgets for already-underfunded public defender offices.
In 2020, for example, we saw Wyoming cut its public defender office’s budget by 10% and $3 million. This meant substantial layoffs for overburdened attorneys in an office that already had a problem retaining attorneys in the first place.
In New Orleans, we watched how one step forward in terms of public defense funding almost always leads to two steps back. In Aug. 2020, the Orleans Public Defenders Office, advocates and allies celebrated when the New Orleans City Council passed an ordinance requiring that the public defender office receive 85% of the funding that the district attorney’s office received from the city’s budget. Not the same amount—just 85% of the prosecution budget.
By Oct. 2020, though, it was clear that the ordinance was worth the paper it was written on. In the proposed 2021 budget, the public defender office is set to receive 28% of the district attorney’s office’s proposed budget—a figure that isn’t even close to the 85% required by the two-month-old ordinance. This disparity is in addition to multi-million-dollar budget cuts as well.
Unsurprisingly, Underpaid and Overworked Defense Attorneys Have Better-Paying Options Out There
The money problems go much deeper than the total budget for public defender offices, too. According to Glassdoor, the average salary for a public defender in the U.S. is just over $50,000 per year. That puts those jobs in the same group with countless jobs that don’t require a law degree or legal experience (and, frankly, require much less time and stress).
It also puts public defender jobs well behind the trend for other lawyers. In 2018, the median salary for lawyers was more than $120,000—more than two times the average public defender. Even the lowest paid 25% of lawyers made around $80,000, significantly more than public defenders.
The Sixth Amendment to the U.S. Constitution guarantees the right to counsel. Undoubtedly, our Founding Fathers knew that some folks wouldn’t be able to afford their own attorneys. Yet lawmakers, even the ones who claim to cherish every word of the Constitution, seem reluctant to ensure this constitutional guarantee has meaning.
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As of 2020, approximately 74% of people in U.S. jails haven’t been convicted of a crime. Some of this alarming percentage is attributable to those who are flight risks or dangers to society. But the vast majority of individuals in jail are simply there because they can’t afford to get out. Stated differently, they can’t afford to post cash bail.
The Problem with Cash Bail
The core of our nation’s criminal-justice system relies on one of the most important parts of American freedom: you are innocent until proven guilty. Because they can’t afford cash bail, incarcerated folks often confront two brutal options. They can plead guilty and be released. Or they can assert their innocence, stay in jail for months after months and then hope a jury understands the prosecution’s burden to prove you guilty beyond a reasonable doubt.
In most cases, it’s just not worth the gamble. So, people plead guilty to crimes they didn’t come. This process is exactly backward.
And the backward process is getting even worse. According to a 2019 report, there has been a 433% increase in the use of pretrial detention since 1970. This means that, as time goes on, our justice system is criminalizing poverty more and more.
Aside from innocent people spending more time in jail and innocent individuals pleading guilty to crimes for the sole reason of getting released—major problems that cannot be overstated—the cash-bail system also has many negative consequences beyond the walls of prisons and courtrooms.
Spending just a few days in jail can cost folks their jobs, homes and even custody of their children. Pretrial detention also leads to an increased likelihood of rearrest upon release. This connection, in turn, creates what turns into an endless cycle of arrest and incarceration. And, more often than not, individuals incarcerated solely because they can’t afford to post bail are the least likely to pose a threat to public safety.
Aside from expected groups like the bail-bond industry and some law-enforcement officials, most generally agree that the current cash-bail system—a system that is alive and well in some degree in all 50 states—needs to come to an end.
To their credit, many states across the country are rethinking the way they use jails. They are reforming their pretrial practices to better reflect the presumption of innocence and equal treatment under the law. And many have focused on redesigning their pretrial systems with the goal of reducing the overuse and misuse of jails.
This vital redesigning process starts with a presumption of pretrial release for anyone charged with a crime. This puts the burden on the government to prove the necessity of detention and limits the types of offenses that can result in pretrial detention to only the most serious ones.
One of the most common misconceptions about ending the cash-bail system is that it puts the public in greater danger. Yet, studies generally indicate that sending fewer people to jail during the pretrial process actually decreases community involvement in the criminal-justice system and saves taxpayer money.
Studies also indicate that that individuals charged with crimes are just as likely, if not more so, to appear for pretrial hearings and trial regardless of whether cash-bail reforms were in place or not. As D.C. Superior Court Judge Truman Morrison contended in 2016, “There is no evidence you need money to get people back to court. It’s irrational, ineffective, unsafe and profoundly unfair.”
Steps Cities and States Have Already Taken
Several states have taken concrete steps to reform the unjust cash-bail system. Washington, DC, for example, began taking steps to eliminate the use of cash bail as early as the 1960s. And the results are remarkable: approximately 94% of individuals charged with a crime are released before trial, and approximately 91% of them appear. The disparity between the appearance rate in DC with its reformed system and states without such reforms is practically nonexistent.
Harris County, TX, home to one of the largest jail systems in the U.S., is another example of successful cash-bail reforms. Prior to its reform, which the county implemented as part of a Nov. 2019 consent decree, approximately 40% of individuals arrested remained incarcerated until their case came to an end. That reform centered on eliminating almost all cash-bail requirements for misdemeanor charges. And it resulted in between 90% and 95% of those charged with misdemeanors being released before trial.
These are two of just a few examples of cash-bail reform making headway across the country. Many other states are struggling to implement such changes. In fact, just recently in Nov. 2020, California voters squarely shot down a bill that would replace the cash-bail system with one based on risk assessments.
While reforms like the one proposed in California face many good-faith opposition—most of which focus on the glaring biases in risk-based assessments by those involved in the justice system—they also serve as examples of how challenging it is to thread the needle when it comes to cash-bail reform.
Interrogating Justice will be closely following and supporting proposed legislation that focuses on eliminating cash bail across the country. Ultimately, the implementation of a fair, unbiased pretrial-release system is essential to ensuring the access to justice for all.
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Between an inability to afford the best lawyers and an inability to be released on cash bond, folks without significant resources face an uphill battle every time they interact with the justice system. The American Bar Association puts it like this: “In the United States, wealth, not culpability, often shapes outcomes.”
That remains true even after your release.
Courts across the country are imposing fines, fees and costs on criminal defendants in almost every case. Courts impose fines as monetary punishments against someone convicted of a crime. For example, imagine a jury convicting you of possessing marijuana in violation of federal law. You can face up to a year in prison and a fine of up to $1,000. That year-long incarceration can impact your life in numerous ways. But reentering society with a $1,000 bill hanging over your head isn’t easy either.
Fees, on the other hand, focus more on the justice system’s bottom line. The White House’s Council of Economic Advisors described these fees are “itemized payments for court activities, supervision, or incarceration charged to defendants determined guilty….” They “are intended to support operational costs in the criminal justice system” rather than serve punishment or deterrent purposes (although they may have those, too).
Between the fines and fees, the cloud hanging over you when you leave prison behind can be a dark one.
Increasing Court Debt is Part of an Unfortunate Trend
Leaving prison with a significant debt hanging over your head is enough to financially ruin some middle-class families. Yet prisons release individuals everyday who face fines and fees they won’t ever be able to pay. Making matters worse, imposing the fines and fees against poor Americans undermines, rather than fulfills, the very purpose for them.
Studies show than tens of millions of Americans have faced fines and fees as a result of a criminal conviction. Yet, in the 1980s, only 12% of incarcerated individuals faced fines. In the early 2000s? Nearly 40%. And ten years after that? Almost 70%. And roughly half of the individuals on probation or parole face charges for those services as well. That’s almost the number from 1990.
Fines and fees aren’t simply increasing for the more serious offenses either. Instead, the largest increase in court debt now comes from misdemeanors, infractions and the least serious penalties. In fact, individuals convicted of a felony who face probation or short-term jail stints are more likely to face fines and fees than those who are sentenced lengthy prison terms.
Higher Court Debt Keeps Missing the Mark
Despite the ineffectiveness of fines and fees, courts are using them more often today than they did in the past. In the past 25 years, incarcerations in the U.S. increased by more than 60 percent. That increase has resulted in more than 2.2 million people currently behind bars. As these numbers have skyrocketed, the costs to the court system have rocketed as well.
Around the early 90s, politicians began taking the view that taxpayers shouldn’t be on the hook for these rising costs. Superficially, this logic makes sense: If you don’t do anything wrong, you shouldn’t have to pay. But that logic doesn’t translate on a practical level.
One of the most high-profile examples of this disconnect comes from Ferguson, MO. A Department of Justice investigation found that Ferguson set revenue targets for their court-imposed fines and fees at more than $3 million in 2015, representing greater than 20% of their overall budget. Another example comes from North Carolina, where the state increased the amount of traffic tickets it issued by 6% to address a 10% budget shortfall.
Lawmakers Use Court Debt for Other Purposes, Too
Rather than address the flaws with court fees and fines, though, lawmakers have used court debt in other shocking ways, too. A recent, high-profile example of this comes from Florida, where the state used court debt to disenfranchise thousands of Americans.
In 2018, Floridians approved a constitutional amendment that allowed felons to vote. According to the amendment that Florida voters passed overwhelmingly, felons could vote as soon as they completed their sentence. Voting-rights advocates across the country praised the move.
But lawmakers claimed that a sentence was not complete until a prisoner paid all of their court fines and fees. For some former inmates, that means no voting rights for years—and maybe ever.
U.S. Representative Val Demings, a Democrat representing Orlando, FL, responded with a bill to prohibit states from doing exactly what Florida did. “A criminal conviction does not erase a person from our communities or our country,” she said at the time.
Ultimately, with court debt on the rise and its ineffectiveness becoming more and more apparent, we need reform now. But, as Rep. Demings said, it’s hard not to feel like some lawmakers are trying to use court debt to “erase” people — or at least their say in our government — from our communities and neighborhoods.
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